Editor’s Note: This post is a continuation of a discussion engendered by a previous post by André de Hoogh. Readers will benefit from reading that previous post and the comments made in response to it. The previous post is available here

Earlier this month, I posted some thoughts on the aspects of the Report of the Georgia Fact-Finding Mission dealing with the relationship between international law and national law. That post generated some interesting questions and comments from Dapo Akande, John Dehn and Tobias Thienel. Somewhat belatedly, I am taking the opportunity to respond and to make some observations on some of the issues raised by that discussion.

First of all, Dapo, I would answer that I both reject the justification of rescuing nationals as an exercise of the right of self-defence, and the application of the suggested justification to that effect to the facts of the situation. Population as an essential ingredient of statehood cannot be taken to refer to the population (or citizens) of a State wherever located, but only to the population resident or present on the territory of a State (article 1 of the Montevideo Convention refers to a permanent population). Additionally, I have my doubts as to whether a self-standing justification to rescue nationals exists under customary international law.

Secondly, John, your reference to an international obligation that would relate solely to a matter of internal governance, and the possibility for a State to invoke its own foundational constitutional requirements, does not clarify why an appeal to that State’s constitutional law would be required at all. If the matter refers to an area within the domestic jurisdiction of States, there will be no need for a State to invoke its constitutional law since all it needs to do is to invoke the absence of any rule of international law regulating the topic. Where an international obligation does exist, whether under a treaty or a rule of customary international law, a State is barred from invoking its internal law including its constitution. Read the rest of this entry…

Under the heading of ‘rescuing Russians as a case of self-defence’, the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia quite sensibly and with good cause rejects this claim on the part of Russia and observes that attacks on nationals or members of the nation abroad cannot be equated to an attack against the territory of a State. However, in its application to the specific case, it then observes (volume 2, p. 288) that:

“[t]he constitutional obligation to protect Russian nationals (…) cannot serve as a justification for intervention under international law. Domestic law can in principle not be invoked as a justification for a breach of an international legal rule” (italics not in original; the attached footnote 211 then refers to article 26 VCLT, which is probably intended as a reference to article 27 VCLT).

But the Report then surprisingly, not to say shockingly, appears to envisage the possibility that:

“[a]t most, domestic constitutional law could be invoked as a defence against obligations imposed on a state by international law if those obligations contradict core elements of the national constitution” [italics not in original].

The Report then claims that article 61(2) of the Russian Constitution, which proclaims that “[t]he Russian Federation guarantees its citizens defence and patronage beyond its boundaries”, is not a basic principle of Russian constitutional law.

Aside from the already mentioned fleeting reference in footnote 211 to article 26 VCLT, laying down the principle of pacta sunt servanda, the Report fails to address article 27 which precisely excludes an appeal to internal law as a justification for the non-performance of treaties (the reference in that provision to article 46 VCLT is not relevant for present purposes, as it only allows an appeal to rules of internal law of fundamental importance for the expression of consent to treaties). Nor is any thought given to the provision of article 3 of the Draft on the Responsibility of States for Internationally Wrongful Acts (DSR; cf. also article 32 DSR) which observes “… The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.” Similar provisions have been introduced into the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (article 27(2-3)), and the Draft on the International Responsibility of International Organizations (DIOR, adopted on first reading by the International Law Commission this year (article 31(1) DIOR; inclusion of a provision into the DIOR similar to article 3 DSR has been rejected by the ILC, cf. ILC, Report 2009, pp. 54-55).

What has moved the drafters of the Report to even consider allowing the invocation by a State of its own constitutional law as a justification for non-observance of international obligations cannot be fathomed. Read the rest of this entry…

Dr André de Hoogh is a senior lecturer in International Law at the University of Groningen. His Ph.D. dissertation (1995) dealt with the topics of obligations erga omnes and international crimes of State. Recent publications have focussed on the powers of the Security Council, the attribution of conduct to States, legislative powers of UN peacekeeping operations, the war against Iraq, the Bush doctrine of pre-emptive self-defence, and jurisdiction of States.

The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, solicited by the European Union, covers an impressive breadth of topics ranging, aside from factual matters, from statehood, self-determination and secession, use of force, human rights and international humanitarian law. Having read the Report with appreciation and generally agreeing with its conclusions, nevertheless various queries and concerns may be raised by the Mission’s treatment of the regulation of the use of force in international law. Some concerns relate to the treatment of sources of international law, others concern matters of substantive analysis. This comment will consecutively deal with the applicability and interpretation of the prohibition of the threat and use of force in article 2(4) of the Charter, the requirement of a report on measures of self-defence to the Security Council, and the permissible goals of self-defence under international law.

The Applicability of the Prohibition of the Use of Force

The Report concludes that the use of force, in the Georgian-South Ossetian conflict, “is ‘inconsistent with the Charter of the United Nations’, and therefore the prohibition of the use of force is applicable to the conflict, for the following reasons.” Besides putting the horse behind the cart (after all, if the prohibition is not applicable, how could force be inconsistent with the Charter?), the reasons then set forth do not quite support the applicability of the prohibition in article 2(4) Charter. First to be mentioned in the Report is a clause in the preamble of the 1992 Sochi Agreement, which reaffirms “the commitment to the UN Charter and the Helsinki Final Act”. This is said to amount to Georgian acceptance of the applicability of the prohibition, because, though South Ossetia is not a party to the Agreement, the purpose of the Agreement is to “bring about a cessation of bloodshed” and achieve a settlement of the Ossetian-Georgian conflict. The Report considers, sensibly enough, the prohibition to be included in the reference to the Charter, but fails to consider the (legal) status of a clause in a preamble and does not, as such, account for the fact that the reference may be explained by Georgia and Russia being parties to the Agreement. Read the rest of this entry…